Dance & Copyright…Still Finding Their Footing

George Balanchine, one of the most influential choreographers of the 20th century, famously said, “God creates; I do not create. I assemble and I steal everywhere to do it—from what I see, from what the dancers can do, from what others do” (“Choreography and Plagiarism”). Inspiration ignites the creation of art, whether dance, drama, music, poetry, or painting. And then, that “new” art serves as inspiration for future creativity. It’s both organically cyclical and endlessly evolutionary, contributing to the beliefs, knowledge, quandaries, and hopes of our society. “Artists participate in an ongoing dialogue within their disciplines and the broader culture,” notes Julie Van Camp, who teaches philosophy of law and art at California State University, Long Beach. “Works are not created in closets, devoid of any influence whatsoever from the cultural milieu within which artists are trained and to which they were exposed during their lifetimes” (Van Camp 209). But at what point does inspiration go too far?

If a child takes an apple from the grocery stand without paying for it, that’s stealing. If a student copies an essay from a peer, that’s plagiarism. But when we talk about art, those conditional statements blur—especially when it comes to dance. It’s not as simple as a computer program recognizing a line of a high schooler’s paper should be in quotations. Dance is inspired, impermanent, and influenced by so many factors­—space, time, music, training, culture, and collaboration. It’s an art form based on the seamless transmission and evolution of movement and meaning. There is no way to measure where one influence ends and another begins. That ethereal quality is beautiful, magical, and problematic. If we can’t draw a definitive line between inspiration and infringement, how can we hope to promote, protect, and preserve the art form?

To safeguard intellectual property and promote economic progress, the United States Constitution contains the Copyright Clause. It reads, “Congress shall have the power…to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (US Const. art. I, sec. 8). While this specific legislative power was introduced in 1787 and has not been formally amended since, numerous acts and rulings have qualified and added terms and conditions of copyright protection.

There are currently eight categories of copyrightable works: literary, music, and dramatic works; pictorial, graphic, and sculptural works; sound recordings; motion pictures and other AV works; computer programs; compilations of works and derivative works; architectural works; and pantomimes and choreographic works (Compendium II of Copyright Office Practices). To register for copyright, a work must be original and fixed in a tangible medium of expression (17 U.S.C. § 102). In the registration application, an author must include:

× The title of the work

× The year the word was completed

× The date and nation of first production, if the work has been published when the application is submitted

× The name of the author or author(s), unless the work is anonymous or pseudonymous

× If the work is a work made for hire

× The name and address of the claimant(s)

× If the claimant is not the author, a brief statement how the claimant obtained ownership of the copyright

× A description of the work being submitted for registration

× A statement describing any preexisting material contained in the work being submitted for registration

× The name of the individual certifying the facts provided in the application

× A non-refundable filing fee (upwards of $45)

× An upload or mail-in copy of the work (“Help: Registration Steps”).

Though the application process is tedious, there are significant benefits to obtaining copyright: 1) public legal notice of ownership, 2) economic and creative control, and 3) the ability to file a lawsuit for infringement. As a general rule, works created after 1977 are protected during the lifetime of the author plus an additional 70 years. When it comes to dance, “the copyright holder of a choreographic work enjoys exclusive rights including the right to make copies; the right to sell these copies to the general public; the right to use the work in a different capacity; and the right to perform the work in public and collect money for the performance” (Morrison). Those rights are invaluable to an artist. Yet, how do we take the leap (pun intended) from dance to law? How can such a transformative and ephemeral performing art be assigned to one owner, meet the strict registration requirements, and continue to encourage rather than condemn inspired and synergetic creativity? This paper takes a critical look at the history of choreographic copyright, analyzes the effectiveness of current legislation, and proposes several small but significant amendments that will help to uphold the art of dance and its vital role in American culture.

…Want to read more? E-mail for the full PDF.

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